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Alabama counties: No marriage licenses for undocumented residents

In apparent violation of the Constitution, probate judges defend practice of requiring proof of legal residence

The Rev. Dennis Berry, whose parish in eastern Alabama has an English and Spanish Mass, says it is "inappropriate" for counties to deny marriage licenses to undocumented immigrants.Alireza K Jamayran for Al Jazeera America

CLIO, Ala. — Rosalba and Manuel Gonzales have been together for 20 years. In 2006, they were living in Alabama when they decided to get married. But when they went to the local probate office in Dothan to apply for a marriage license, they quickly understood it would not be easy.

A woman at the courthouse asked Manuel for a picture ID. He handed her his Mexican passport.

“And she said, ‘No, this passport has to have a visa. We cannot give you the license with this. How did you get in this country?’” Manuel recalled.

Rosalba and Manuel said they got nervous, grabbed their passports and left the courthouse. The next day they got a marriage license at the courthouse in neighboring Dale County, 30 minutes away.

It is unclear when the practice started, but for years certain counties in Alabama have been refusing to provide undocumented immigrants with marriage licenses. Since the early 2000s, attorneys general and federal judges across the U.S. have stated that denying an undocumented immigrant a marriage license violates a couple’s “fundamental right to marry” as outlined in the U.S. Constitution.

Samuel Brooke, a staff attorney at the Southern Poverty Law Center (SPLC) who works on the center's Immigrant Justice Project, said the purpose of asking for identification is “to make sure that the person being married, that their name and identification, that their legal name is being recorded correctly, and that is the only real purpose.”

In 2011, when Brooke first heard that some Alabama counties were requiring “proof of lawful immigration status” in order to issue marriage licenses, he was shocked. It was the same year that Alabama passed House Bill 56, one of the toughest anti-immigration laws in the nation.

“This law had everything in it,” Brooke said. “But the one thing this law said was, don't touch marriage licenses. We recognize that marriage is a fundamental right for all people; we recognize anyone should be able to get married. It doesn't matter their immigration status or their history, they should be able to get married as long as they provide their legal name.”

In fact, for more than a decade, attorneys general across the country, including in Alabama, have made a focused effort to be clear on the issue of what is required to apply for a marriage license. In 2008, then-Alabama Attorney General Troy King said applicants should not have to provide photo ID or a Social Security number. Instead, those without a Social Security number could present a signed affidavit that they had never been issued one.

'It's the state law'

In 2011 and 2012 the SPLC sued two counties, Montgomery and Tallapoosa, over their discriminatory marriage policies. Both counties stopped requiring proof of citizenship in August, and Montgomery County changed the language on its website to read, “As a policy, the Montgomery County Probate Office does not discriminate in issuing marriage licenses based on immigration status. The Montgomery County Probate Office does not require an applicant to provide proof of lawful presence in the United States or of legal immigration status in order to be issued a marriage license.”

A check of counties’ websites reveals that many ask for “any form of photo ID, issued by the U.S. or any foreign country or state.” Some ask specifically for a driver’s license, which undocumented immigrants cannot apply for in Alabama. In telephone interviews at the beginning of November, several counties said they were in the process of “revising (their) policy” and would no longer check visas or require driver’s licenses.

In Houston County, where the Gonzaleses initially applied, a phone answering system said at the beginning of November that a valid driver’s license and Social Security number are required to apply for a marriage license, but a woman who answered the phone said a passport from Mexico would also be legitimate.

Judge Sheila G. Moore, the probate judge of Winston County in northeastern Alabama, said in a telephone interview in November that anyone applying for a marriage license “must have proof that they are here legally.”

“It’s the state law,” she said. “Once they get married they think that makes them legal, but it doesn’t.”

She said she had not heard of the previous court cases and would not change the marriage license requirements.

Covington County, a rural area in southern Alabama bordering Florida, is more explicit. On the probate judge’s website under “Frequently Asked Questions” it reads:

May a foreign national get married in Alabama?

Of course. The only additional requirement is that the non-citizen must present documentation (usually in the form of a U.S. visa) that he or she is lawfully present in the United States. The Covington County Probate Office does not issue marriage licenses to illegal aliens.

In an email statement, Covington County Probate Judge Ben Bowden wrote, “I am confident that this is the correct policy. However, in light of current events, we are reviewing the policy to make sure it is in line with applicable law.”

Bowden continued that he was aware of the previous cases, but that since they were “settled out of court,” they did not affect his county.

“That is, I did not hear that a judge had ruled that it was illegal to deny a person a marriage license based on immigration status,” he wrote. “In fact, to the best of my knowledge, NO JUDGE OR COURT (sic) with controlling authority over Alabama Probate offices has ever ruled that it is illegal to deny a person a marriage license based on immigration status.”

Finding alternatives

On Sundays, St. Joseph Parish, a Catholic mission in eastern Alabama, holds two Masses — one in English and one in Spanish — for a packed hall of congregants. The Rev. Dennis Berry, known more comfortably as Father Dennis, has worked at this parish on and off for eight years. Berry speaks fluent Spanish; he said it’s a necessity in order to connect with worshippers, many of whom are Hispanic.

He said he first heard that his parishioners in Russell County were being denied marriage licenses nine years ago.

“It was all so inappropriate, in the sense that it wasn't like a state law,” he said. “It just happened in different places, and it just seemed ridiculous and against the whole notion of family values.”

Berry and some other church leaders went to talk to officials in different counties. Some changed their policies, he said; others didn’t. So, he admitted, the church and the Hispanic community found ways to get around the requirement, including driving to Georgia, getting married civilly and returning to St. Joseph to be married in a religious ceremony.

Berry said he was particularly surprised that Alabama, a religiously conservative state, was trying to prevent people from getting married.

“It's discouraging family values and traditional marriage, which is a strange phenomenon for a state that so much wants to support traditional marriage,” he said with some frustration. “That they would make traditional marriage, in a Christian context, difficult for no reason except to make it difficult.”

As a Catholic and priest, Berry said it is his duty to fight for immigrants. He referred to passages in both the Old and New Testaments, where the Scripture says “foreigners” should be protected.

“When we reject immigrants, when we treat them harshly, we are absolutely going against every single thing that the Scripture teaches us,” he said. “The Israeli people were immigrants who sought a homeland. Immigrants better be treated right, or we are mistreating and disobeying the law of God. And that is why the Catholic Church needs to fight for immigrants and will fight for immigrants.”

People in the Hispanic community advise one another on where to go to get a marriage license. Two years ago, Manuel Gonzales assured his niece that she could go to the same courthouse in Ozark where he got his marriage license. But when she arrived there she was refused. She finally had to drive to Florida, an hour away, to get a license.

Working for change

Berry said he thinks Russell County provides licenses, but Victor Perez, a member of the church who is studying to be a Catholic priest, later whispered that people in the congregation have said Russell County does not issue marriage licenses to undocumented immigrants.

The website for the county's probate judge reads, “Both the bride and groom will need to have their valid driver's license. If they do not have a driver's license, a valid state issued ID card, a certified birth certificate or a Military ID will be required. In addition to the ID above, a Social Security card is required. If you have lost your card, you may go to your local Social Security office to obtain a print out of your card at no charge.”

Brooke of the SPLC said it’s unclear how many counties continue to refuse to issue licenses. The SPLC has sent out letters telling counties they must comply, and many have changed their requirements. But much of his work, Brooke said, is educating the general population on what immigration law actually says.

“In fact, our Constitution is quite clear,” he said. “People are people first and need to be treated as such. The law couldn’t be clearer on the issue of marriage licenses. It doesn’t matter what your immigration status is, it doesn't matter what your criminal history is, you have the right to marry the person of your choice, and that is fundamental.”

On Sundays, Manuel and Rosalba Gonzales attend Nuestra Senora de Guadalupe, a cinder-block church in rural Clio that is an offshoot of St. Joseph.

By 9 a.m. on a recent Sunday, the small church was packed with about 200 people — families, teenagers and sleepy children, slumped down in deep pews. The service started with the Lord’s Prayer as a group of teenage acolytes carried the cross and sacraments down the aisle. The Gonzaleses held their arms out to the side, palms up, praying.

Rosalba said she advises young couples who want to get married that they should fight.

“There will always be a door open for you,” she said.

The Gonzaleses continue to fight as well. Since HB 56 passed, Manuel has been unable to get a fishing license in Alabama. So he drives 40 minutes across the border to Florida, pays about $40 for the license and fishes there.